Human Rights Council Resolutions 26/9 and 26/22: Towards Corporate Accountability?

On June 26, 2014, the Human Rights Council (HRC) adopted resolution 26/9, establishing an intergovernmental working group mandated to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”[1]  Yet one day later, the HRC adopted resolution 26/22. The resolution does not support a binding legal instrument governing business-related abuses, instead opting to continue the mandate of the UN Working Group on Business and Human Rights for another three years.[2] It further reaffirms the normative content of the UN Guiding Principles on Business and Human Rights (UNGPs), focusing on strengthening domestic measures through implementation of the UNGPs and improving access to remedies for victims of business-related abuses.[3]

Although these resolutions arguably share the same goal—to strengthen accountability for business-related abuses—they adopt significantly different approaches in achieving that goal. From these resolutions two schools of thought have emerged: those seeking a binding treaty, and those opposing it, with the U.S. and most of the Western world falling into the latter group. Unfortunately, this polarizing debate spans decades and has resulted in an absence of binding norms governing corporate abuses. In former UN Special Representative for Business and Human Rights John Ruggie’s commentary regarding the two HRC resolutions, he posed the question:

Will this latest attempt to impose binding international law obligations on transnational corporations turn out to be another instance of the classic dysfunction of doing the same thing over and over again and expecting a different result?[4]

This Insight reveals the ongoing barriers to establishing clear and universal obligations of corporate accountability, in view of the historical failure to do so.

UN Guiding Principles on Business and Human Rights

On June 16, 2011, the HRC unanimously adopted the UNGPs, creating the first global standard for preventing and protecting human rights abuses related to business activity.[5] The UNGPs prioritize three pillars: to protect, respect, and remedy.[6] It is the state’s duty to protect against human rights abuses, the business enterprises’ responsibility to respect human rights, and the state’s responsibility to provide access to a remedy.[7]

The UNGPs represent the outcome of decades of discussion, tracing to the 1970s, when the UN Commission on Transnational Corporations sought to establish a code of conduct for transnational corporations.[8] Opposed by industrialized countries, the Commission dissolved after two decades of fruitless deliberation. In 2003, the UN Sub-Commission for the Promotion and Protection of Human Rights adopted “draft norms,”[9] the first non-voluntary attempt to hold businesses accountable for human rights violations.[10] The draft norms were supported by NGOs but universally opposed by the business community,[11] and by 2004 they were determined to have “no legal standing.”[12]

Historically, soft law approaches have fared much better. The UNGPs, although widely respected as an improvement on global governance, are merely aspirational, and should not be read as creating new international legal obligations.[13] Since the adoption of the UNGPs, many organizations and businesses have adopted self-regulating codes of conduct governing their business practices.[14] Unfortunately, although most human rights abuses are written into these codes, human rights abuses continue daily.[15]

Lack of Support from Business and the Western World

The 1970s code of conduct and the 2003 draft norms failed largely due to lack of support from the Western world. Resolution 26/9 faces the same opposition and likely fate. Introduced by Ecuador and backed Bolivia, Cuba, and South Africa, resolution 26/9 was adopted by a marginal 20 votes in favor, 14 votes against, and 13 abstentions.[16] The European Union and the United States voted against the resolution.[17] By contrast, resolution 26/22, proposed by Norway and supported predominantly by Western countries, was adopted unanimously and did not require a vote.[18]

The 2003 opposition to the draft norms was led by the International Chamber of Commerce (ICC) and the International Organization of Employers (IOE).[19] Both organizations wield significant global power and influence, with the ICC’s network spanning 6.5 million companies worldwide[20] and the IOE representing the largest network of the private industry.[21] The ICC and the IOE have opposed the adoption of resolution 26/9, calling it a “genuine set back.”[22]

Lack of Consensus

Resolution 26/9 established an open-ended intergovernmental working group to elaborate a binding legal instrument governing corporate abuses. The working group held its first meeting in July 2015, where it launched its consultative process.[23] As such, it has collected input from states and relevant stakeholders and will submit a report on its progress at the Human Rights Council’s 31st session to take place in 2016.[24] In addition to voting against resolution 26/9, the U.S. has stated that it will not take part in the intergovernmental working group,[25] which has no fixed deadline for completing its work.

Treaties take years of consensus-building among nations before adoption and entry into force. [26] The U.S. has suggested that the treaty will shift the focus away from the UNGPs, hindering their implementation.[27] Those supporting the treaty argue that current soft law approaches are insufficient, and in order to give real meaning and support to the UNGPs a binding treaty is imperative.[28]

Lack of Domestic Enforcement

Resolution 26/22 reaffirms the UNGPs’ normative content. As such, it does not necessarily alter the status quo; however, it does encourage states to increase domestic measures by developing National Action Plans (NAPs) to implement the UNGPs, giving special attention to the need for effective judicial and non-judicial remedies.[29]

In response to resolution 26/9, Senior Policy Manager of the ICC Commission on Corporate Responsibility and Anti-corruption opined, “no initiative or standard with regard to business and human rights can replace the primary role of the state and national laws in this area.”[30] While recognizing the primary role of the state to govern corporate abuses, in a 2011 comment on the draft UNGPs, the ICC recognized that a “fundamental problem” in establishing accountability for corporate abuses is the state’s failure to meet obligations under current international human rights law, and lack of enforcement of domestic laws.[31]

A major concern of the NGO community is that resolution 26/22 is merely a distraction, justifying treaty avoidance and government inaction. According to Amnesty International, “the real threat to the U.N. Guiding Principles comes from the reluctance of governments to give effect to them.”[32] Since the 2011 adoption of the UNGPs, only four countries have created NAPs: the U.K., Netherlands, Denmark, and Finland.[33] In September, the U.S. announced its intention to develop a plan, but the substance of the plan remains unclear.[34]

Conclusion

Although the importance of addressing corporate human rights abuses is today widely recognized, the means of achieving corporate accountability raises the same divisions as forty years ago. As Special Representative John Ruggie pointed out during the creation of the UNGPs, “the last thing victims need is more unenforced declarations; they need effective action.”[35] Those in support of a binding treaty governing business-related abuses believe that resolutions 26/9 and 26/22 are able to operate together and may proceed in parallel.[36] Resolution 26/22 would work to reaffirm the normative content of the UNGPs, while 26/9 would develop a binding treaty based largely on the principles of the UNGPs. These two resolutions could work together, reinforcing each other, but the historically divisive debate makes this congruence unlikely. The adoption of 26/22 one day after 26/9 appears to serve as the Western world’s alternative to 26/9. Although civil society and the NGO community work to create a parallel process, it seems unlikely that Ruggie’s call for “effective action” will be realized.

About the Author: Nicole Tuttle is a lawyer who spent five years working in the apparel industry before entering the legal field. She has served as an International Law Fellow at the Lauterpacht Centre for International Law, and at the American Society of International Law. She currently works in policy in the tech sector.